The following papers numbered 1 to 6 were read on this motion (Mot. Seq. No. 001) for SUMMARY JUDGEMENT DEFENDANT noticed on April 23, 2021. Notice of Motion — Order to Show Cause — Exhibits and Affidavits Annexed No(s). 100-108 Cross Motion — Affidavits — Exhibits No(s). 112-125 Replying Affidavit and Exhibits No(s) Upon the foregoing papers, defendants Lutrail Roberts and Clairgar Roberts’ (collectively referred as the Roberts) move to dismiss plaintiff’s complaint pursuant to CPLR 3212 and 3211(a)(5), contending that plaintiff previously accepted a settlement and released the Roberts from any and all claims and causes of action arising out of the subject motor vehicle accident. Plaintiff opposes and cross moves to strike the Roberts’ ninth and eleventh affirmative defenses based on the purported release and compelling the Roberts to respond to certain discovery demands. As set forth below, the Roberts defendants’ motion is denied and plaintiff’s cross motion is granted in part. This is a negligence action to recover damages for personal injuries plaintiff allegedly sustained in a motor vehicle accident that took place on July 16, 2020. On July 20, 2020, in consideration of $750.00, plaintiff signed a document titled “Full Release of All Injury Claims with Indemnity,” purportedly releasing the Roberts from any claim, action, or cause of action arising from the accident. The Roberts seek summary judgment dismissing the complaint based upon plaintiff’s purported release. In support of his motion, defendants submit the pleadings, an uncertified police report, the purported release, and a screenshot of defendants’ insurer’s (Progressive) record of the electronic transfer made to plaintiff. Plaintiff opposes the motion, asserting that: the release is invalid because the parties, most notably plaintiff, were unaware of the extent of his injuries; plaintiff believed he was signing a release regarding property damage claims; the release was obtained through fraud; and defendants’ motion is procedurally defective as discovery has not proceeded. In support, plaintiff annexes his affidavit, in which he affirms that four days after the accident, he spoke with a representative from Progressive to discuss the claims, particularly the property damage claim (Exh. A). Plaintiff affirms that he inquired with the representative as to the damage to his vehicle, as he did not have collision coverage, and that the representative responded that “[Progressive] would” (Exh. A). Plaintiff further affirms that Progressive did not explain what the release entailed, that he believed it was compensation only related to the property damage of his vehicle, and that he was unaware of the extent of his injuries until 14 days after the accident, when he went to the emergency room (Exh. A). Lastly, plaintiff affirms that he is an immigrant from Jamaica, and that he was taken advantage of by Progressive (Exh. A). “The general rule is that ‘a valid release which is clear and unambiguous on its face and which is knowingly and voluntarily entered into will be enforced as a private agreement between parties”‘ (Thailer v. LaRocca, 174 AD2d 731, 733 [2d Dept 1991] [internal citations omitted]). Where the language with respect to the parties’ intent is clear and unambiguous, it will be given effect, regardless of one party’s claim that she intended something else (see id. supra, DeQuatro v. Zhen Yu Li, 211 AD2d 609; Falconieri v. A&A Discount Auto Rental, 262 Ad2d 446 [2d Dept 1999]). However, “[a] patient who lacks the requisite mental capacity to enter into a contract cannot be a party to a valid release” (Fleming v. Ponziani, 24 NY2d 105 [1969]). While a release is a “jural act of high significance” which may not be treated lightly (see Gettner v. Getty Oil Co., 226 AD2d 502 [2d Dept 1996]; see also, Liling v. Segal, 220 AD2d 724 [2d Dept 1995]; L & K Holding Corp. v. Tropical Aquarium, 192 AD2d 643 [2d Dept 1993]), it is equally well settled that the meaning and coverage of a release depends on the controversy being settled, and that a “release may not be read to cover matters which the parties did not desire or intend to dispose of”. (See Cahill v. Regan, 5 NY2d 292 [1959]; Blank v. Blank, 222 AD2d 851 [3d Dept 1995]; Lefrak SBNAssocs. v. Kennedy Galleries, 203 AD2d 256 [2d Dept 1994]; B.B. & S Treated Lumber Co. v. Groundwater Technology, 256 AD2d 430 [2d Dept 1998]; Dillon v. Dean, 236 AD2d 360 [2d Dept 1997]). Defendants established a prima facie case that the plaintiff signed a release, releasing defendants from any liability in this case and from any liability regarding the subject motor vehicle accident in exchange for $750.00 via the signed release annexed to the motion. However, the Court finds that in light of plaintiff’s affidavit, triable issues of fact exist, which turn on the credibility of the parties, as to whether the purported release was procured by fraud, whether the purported release was signed by plaintiff under circumstances that indicate unfairness, and whether the purported release was fairly and knowingly made (S’accheni-Virga v. Bonilla, 158 AD3d 783, 724 [2d Dept 2018]; see also Bloss v. Va’ad Harabonim, 203 AD2d 36, 39-40 [1st Dept 1994], Reyes v. McQueen, 2020 WL 3524289 [Sup. Ct. Bx Cty 2020]). Accordingly, defendants’ motion is hereby denied. Plaintiff’s Cross Motion Plaintiff cross moves this Court for an order dismissing defendants’ affirmative defenses based upon the purported release and declaring the Release null and void. Plaintiff’s affidavit contains allegations sufficient to establish a prima facie case that the release was procured via fraud; moreover, plaintiff sufficiently established through his medical records and treating doctors’ reports that he signed the release under the mistaken belief that his injuries were minor (Pacheco v. 32-42 55th St. Realty, LLC, 139 AD3d 833 [2d Dept 2016]; Johnson v. Lebanese American University, 84 AD3d 427 [2011] (releases may be invalidated where procured under “unfair circumstances)). In opposition, defendants failed to raise a triable issue of fact. Though defendants refer to the release provisions plainly stating that the release covered all claims arising from the subject accident, they did not rebut the allegations of fraud through the affirmation of someone with personal knowledge of the release. A mere “attorney’s affirmation that is not based upon personal knowledge is of no probative or evidentiary significance,” and is thus incapable of raising a triable issue of fact (Warrington v. Ryder Truck Rental, Inc., 35 AD3d 455, 456 [2d Dept 2006]). Accordingly, that portion of plaintiff’s cross motion is granted. As to the portion of plaintiff’s cross motion seeking to compel defendants to respond to outstanding discovery demands is denied as the parties have failed to comply with Uniform Civil Rules Section 202.20-f before resorting to motion practice, “disputes should be resolved through informal procedures, such as conferences, as opposed to motion practice.” If necessary, a discovery conference may be requested upon written application demonstrating that all good faith efforts have been exhausted to resolve the issue(s) without court intervention. The application shall identify the good faith efforts undertaken and highlight specific point(s) of contention that require judicial resolution, as set forth in Administrative Order dated September 22, 2021. Conclusion Accordingly, it is ORDERED, that the defendants’ motion is hereby denied in its entirety, and it is further ORDERED, that the plaintiff’s cross motion declaring the release dated July 20, 2020 null and void, and striking defendants’ Ninth and Eleventh Affirmative Defenses, is hereby granted, and it is further ORDERED, that the plaintiff’s cross motion compelling discovery is hereby denied. This constitutes the decision and order of the court. CHECK ONE: CASE DISPOSED IN ITS ENTIRETY CASE STILL ACTIVE MOTION IS: GRANTED DENIED GRANTED IN PART OTHER CHECK IF APPROPRIATE: SETTLE ORDER SUBMIT ORDER SCHEDULE APPEARANCE FIDUCIARY APPOINTMENT REFEREE APPOINTMENT Dated: December 1, 2021
